# Buckley v. State

> Court of Appeals of Texas · August 23, 1988 · 758 S.W.2d 339

URL: https://www.frixlaw.com/law-library/cases/9652715

## Case

- **Full name:** Donald Whitfield BUCKLEY, Sr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** August 23, 1988
- **Citations:** 758 S.W.2d 339; 1988 Tex. App. LEXIS 1562; 1988 WL 88769
- **Precedential status:** Published
- **Opinion:** Dissent by Bleil
- **Judges:** Cornelius, Grant, Bleil
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9652715

## How later opinions describe it (automated extraction)

- establishing eleven “[i]ndicia of reliability” that the trial court 4 “may look to”

## Opinion text

BLEIL, Justice,
dissenting.
Our opinions highlight the delicate balancing of interests required in cases involving child victim hearsay exceptions. Were we writing on a clean slate, I could join in the majority’s decision. But, we are not and I cannot.
As an intermediate appeals court we are bound by the decisions of the Court of Criminal Appeals as well as those of the United States Supreme Court and those courts’ interpretations of the United States Constitution and the Texas Constitution. Recently the highest court in Texas undertook an independent, in-depth historical view of our constitutional decisions in this area of the law.
In Long v. State, 742 S.W.2d 302 (Tex.Crim.App.1987), the Court of Criminal Appeals determined that Tex.Code Crim.Proc. Ann. art. 38.071 § 2, amended by 1987 Tex.Gen.Laws, 2nd Called Sess. 180, 181 (Acts 1987, 70th Leg., 2nd Called Sess., ch. 55, § 1, eff. Oct. 20, 1987), was unconstitu *347 tional. That statutory provision, originally enacted in 1983, provided for the admission in evidence of a videotaped oral statement of a child made before the trial of the case in which the child is alleged to be the victim. In 1985, before the Long decision, the Legislature enlarged the protection given to child sex crime victims by enacting Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon Supp.1988), so that not only out-of-court videotaped statements were admissible in a criminal prosecution, but also out-of-court hearsay statements by a child to the first adult to whom the statement is made. In this appeal we are concerned with the latter enactment, sometimes referred to as the child victim hearsay exception. In Long v. State, Id., the court agreed with Long’s assertion that Tex.Code Crim.Proc.Ann. art. 38.071 denied him his right to be confronted by his accusers as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Texas Constitution.
Certain principles seem to be agreed upon by courts which have looked at the constitutional right of confrontation. At the heart of this right lies the opportunity for cross-examination of adverse witnesses at the trial itself. See Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed. 2d 40 (1987). And, generally, a defendant’s right to confront the witnesses against him requires that the witnesses be present at trial and that the defendant be permitted an opportunity to cross-examine the witnesses. See Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237 , 15 S.Ct. 337 , 39 L.Ed. 409 (1895).
The pivotal question before us today is the same question which was before the Court in Long v. State, supra. In an opinion concurring with the majority’s decision, Judge Teague stated that question as follows:
whether the State may use an ex parte out-of-court hearsay statement of an available and willing to testify witness during its case in chief to establish the defendant’s guilt beyond a reasonable doubt, and the defendant was never given the opportunity to cross-examine the witness when the statement was taken.
In that concurring opinion, Judge Teague added that: “The essential rudiments of due process and due course of law forbid the admission of such a statement, and Judge Duncan’s majority opinion correctly so holds_” Long v. State, 742 S.W.2d at 329 , (Teague, J., concurring). That was essentially the question before the Court in Long , and the answer given to that question was that use of the ex parte out-of-court hearsay statement was constitutionally prohibited.
Arguably, that holding goes beyond holdings by the United States Supreme Court which has consistently found hearsay evidence admissible when the declarant is available at trial for cross-examination, even when there was no cross-examination at the time the hearsay statement was given, reasoning that the in-trial opportunity for cross-examination about the out-of-court statement sufficiently tests the reliability of those statements. See Kentucky v. Stincer, 482 U.S. 730 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987); Chambers v. Mississippi, 410 U.S. 284 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973); Nelson v. O’Neil, 402 U.S. 622 , 91 S.Ct. 1723 , 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).
Nevertheless, the Court of Criminal Appeals was well aware of those decisions and reviewed them as well as certain decisions under the Texas Constitution prior to arriving at its decision in Long . The majority of the Court in Long found most significant the fact that the videotaped statement under Article 38.071 was “expressly taken without the defendant being present or represented.” Long v. State, 742 S.W.2d at 319 . Distinguishing that situation from the one in Green , the Court continued that, “Whereas, in Green the opportunity for contemporaneous cross-examination was extant and occurred.” Thus the majority found the paramount evil was the admission of an out-of-court hearsay statement given at a time when there was no opportunity for cross-examination and confrontation.
*348 The question which this Court now faces is perhaps one of the most difficult ones currently facing the courts in our country. The Legislature addressed the delicate competing interests which are involved when it amended Article 38.071 after the Dallas Court of Appeals ruled it unconstitutional in Long v. State, 694 S.W.2d 185 (Tex.App.-Dallas 1985), affd, 742 S.W.2d 302 (Tex.Crim.App.1987). Immediately following the amended version of Article 38.-071, the Legislature set out its purpose:
Sections 2 and 6 of Acts 1987, 70th Leg., 2nd C.S., ch. 55 provide:
“Sec. 2. Purpose. The purpose of this statute is to establish procedures for the taking of testimony of child complainants in certain criminal prosecutions, while preserving the constitutional rights of defendants. The interests of the defendant include the right of confrontation, including cross-examination, under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, Section 10, of the Texas Constitution; and the right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 19, of the Texas Constitution.
“The state interest concerns the children who are victims of sexual offenses and who are subjected to the intimidating nature of confronting the defendant and the pressures related to the ordinary participation of the victim in a courtroom trial. In addition, because a child is more likely than an adult to have a difficult time recovering from the trauma related to an offense, it is in the state’s interest that the child victim provide testimony as early and as infrequently as possible.
“Finally, it is in the interest of all parties that sufficient discretion be afforded courts hearing such cases, so that the competing interest can be balanced in an individualized manner. By providing the changes included in this Act the legislature believes that the courts will have a sufficiently flexible system that properly protects the rights of defendants while reducing the deleterious effects of the criminal justice system on certain child sex crime victims.”
The interests which must be balanced, as set out above, apply equally to Article 38.-072. Indeed, the complexity of this issue has caused it to draw wide attention. See, e.g., the publication referred to in the court’s opinion, J. Myers and N. Perry, Child Witness Law and Practice § 5.38 (1987). The authors note the difficulty of proof in child sexual abuse cases. “Child sexual abuse is often extremely difficult to prove. The crime is committed in secrecy, and there are seldom eyewitnesses other than the child.” Id. at 372.
Myers and Perry go on to note that the legislatures in a growing number of states have responded by enacting special hearsay exceptions for child victims of sexual abuse. They observe that in 1982 Washington enacted a child victim hearsay exception that has served as a model for other states. In State v. Ryan, 103 Wash. 2d 165 , 691 P.2d 197 (1984), the Washington Supreme Court upheld that statute— quite similar to our Article 38.072 — against a constitutional attack. Generally, courts in other jurisdictions have approved the child victim hearsay exception statutes. See, e.g., Cogbum v. State, 292 Ark. 564 , 732 S.W.2d 807 (1987); Glendening v. State, 503 So.2d 335 (Fla.Dist.Ct.App.1987); State v. Myatt, 237 Kan. 17 , 697 P.2d 836 (1985); State v. Bellotti, 383 N.W.2d 308, 314-16 (Minn.App.1986); State v. Marcum, 750 P.2d 599 (Utah 1988); State v. Nelson, 725 P.2d 1353 (Utah 1986); but see State v. Robinson, 153 Ariz. 191,198 , 735 P.2d 801, 808 (1987); State v. D.R., 109 NJ. 348, 537 A.2d 667 (1988).
Although the question of the constitutionality of Tex.Code Crim.Proc.Ann. art. 38.072 has not been ruled upon in this State, there can be little doubt that the decision of the Court of Criminal Appeals in Long controls that question. Furthermore, well before that court’s Long decision, a case similar to the one now before us (before the existence of Article 38.072) was decided. In Vasquez v. State, 145 Tex.Crim. 376 , 167 S.W.2d 1030 (1942), Vasquez was convicted of raping an eight-year- *349 old child. The child victim was not called as a witness. Rather, the child’s grandmother testified to the child’s condition, appearance, and as to what the child told her the defendant had done to her.
The court, after reviewing the failure of the child to testify not only as a violation of the defendant’s right of confrontation but also as that failure to testify related to the sufficiency of the evidence, noted that:
The little girl was nervous and exited (sic) and this was relied upon as a reason for the State not offering her as a witness, though she was an unusually smart child. We do not believe that it is sufficient under the facts stated to defeat the right of the accused to be confronted by the witness against him.
Vasquez v. State, 167 S.W.2d at 1032 . Commenting on the Vasquez decision, the court in Long said, “What the court condemned in Vasquez, supra, is essentially what Art. 38.071, § 2, supra, was enacted to accomplish — except in more pervasive terms.” Long v. State, 742 S.W.2d at 316 .
The condemnation in Vasquez , as noted by the Court of Criminal Appeals, covered essentially what Article 38.071, § 2 was enacted to accomplish. That condemnation also covers what Article 38.072 was enacted to accomplish.
On the basis of Vasquez and Long I feel compelled to conclude that Article 38.072 is an unconstitutional deprivation of Buckley’s right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution, and of his State-guaranteed right of confrontation under Article I, Section 10 of the Texas Constitution, because it allows the admission of out-of-court hearsay statements given at a time when the defendant has no right to be present or to cross-examine the witness.
Feeling compelled to follow all of the mandates of the Court of Criminal Appeals in Long — including its mandate that a defendant be allowed the right of confrontation and contemporary cross-examination of a witness before out-of-court hearsay statements are admitted in evidence — and being unwilling to fail to follow that decision because I personally may believe the decision to be “wrong,” I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652715. Public record. Not legal advice.